Category Archives: Attachment A

SA

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PROCEDURES GOVERNING AUTHOR SUB-CLASS AND PUBLISHER SUB-CLASS UNDER THE SETTLEMENT AGREEMENT

Also posted in Settlement | Comments closed

SA 0

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Publishers and Authors recognize that they may have legitimate and overlapping rights to authorize use of and receive compensation for Books. Accordingly, in the course of settling the Action, Publishers and Authors have established procedures for determining their respective rights with respect to Books, the Settlement Fund and revenues earned from Books under the Settlement Agreement.

Also posted in Article A0, Settlement | Comments closed

SA 01

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Definitions; Cross-References

Also posted in Article A1, Settlement | Comments closed

SA 01.1

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A capitalized term in these Author-Publisher Procedures shall have thesame meaning as set forth in the Settlement Agreement, unless otherwise provided.

Also posted in Article A1, Section A1.1, Settlement | Comments closed

SA 01.2

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Author means a member of the Author Sub-Class.

Also posted in Article A1, Section A1.2, Settlement | Comments closed

SA 01.3

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Educational Books means Books that, when published, were intended primarily for sale to educational markets (i.e., K-12, higher education, continuing education, vocational, professional, self-study, and similar educational markets) for use in educational programs.

Also posted in Article A1, Section A1.3, Settlement | Comments closed

SA 01.4

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Other Google Program means a Google program other than, but similar to, the Revenue Models, including, but not limited to, the Google Partner Program.

Also posted in Article A1, Section A1.4, Settlement | Comments closed

SA 01.5

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Publisher means a member of the Publisher Sub-Class.

Also posted in Article A1, Section A1.5, Settlement | Comments closed

SA 01.6

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Unless otherwise stated, all references herein to Articles and Sections refer to Articles and Sections of these Author-Publisher Procedures.

Also posted in Article A1, Section A1.6, Settlement | Comments closed

SA 02

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SCOPE OF PROCEDURES

Also posted in Article A2, Settlement | Comments closed

SA 02.1

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Scope. Except as set forth in Article X, the terms of these Author-Publisher Procedures apply only to the rights and obligations under this Settlement Agreement with respect to RightsholdersBooks.

Also posted in Article A2, Section A2.1, Settlement | Comments closed

SA 02.2

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Effective Date. The Author-Publisher Procedures are effective as of the Effective Date, provided, however, that if the Registry is operational prior to that date, an Author and a Publisher may, by mutual agreement, invoke the procedures set forth in these Author-Publisher Procedures.

Also posted in Article A2, Section A2.2, Settlement | Comments closed

SA 03

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Classification of Books

Also posted in Article A3, Settlement | Comments closed

SA 03.1

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Initial Classification of a Book. Books that are initially classified as Commercially Available under the Settlement Agreement on the Notice Commencement-Procedures Governing Authorss and Publishers Date will be classified under these Procedures as In-Print Books, subject to Sections 3.2 and 3.3. Books that are initially classified under the Settlement Agreement on the Notice Commencement Date as not Commercially Available will be classified under these Procedures as Out-of-Print Books, subject to Sections 3.2 and 3.3.

Also posted in Article A3, Section A3.1, Settlement | Comments closed

SA 03.2

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Tests for Determining Classification of Books. Either an Author (or the Author directors of the Board of Directors of the Registry) (other than for a work-for-hire Book) or a Publisher (or the Publisher directors of the Board of Directors Registry) (other than for a reverted or Author-Controlled (defined in Article IV) Book) can challenge the classification of its Book or a group of its Books as In-Print or as Out-of-Print based on the following tests.

Also posted in Article A3, Section A3.2, Settlement | Comments closed

SA 03.2.1

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(a)A Book shall be classified as In-Print if it meets either of the following tests:

Also posted in Article A3, Section A3.2(a), Settlement | Comments closed

SA 03.2.1.1

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(i) Test 1:

The author-publisher contract for the Book does not provide for reversion to the Author of rights in the Book under any circumstances, or the Book is “in-print” under the author-publisher contract. For this purpose, the Book may be “in-print”even if the contract does not use the term “in-print,” provided, however

Also posted in Article A3, Section A3.2, Section A3.2(a), Section A3.2(a)(i), Settlement | Comments closed

SA 03.2.1.1.1

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(1) If the contract measures “in-print” by reference to revenues and more than fifty percent (50%) of the revenues paid to a Publisher from exploitation of a Book are earned from the Revenue Models, then those revenues shall not be considered in determining whether this Test 1 has been met.

Also posted in Article A3, Section A3.2, Section A3.2(a), Section A3.2(a)(i), Section A3.2(a)(i)(1), Settlement | Comments closed

SA 03.2.1.1.2

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(2) If the contract measures “in-print” by units sold or measures other than revenues, then an equivalent principle will be applied in determining whether this Test 1 has been met. The fact that a Book or information about a Book is included in a database or that information about the Book is provided in search engine results does not, by itself, mean that the Book is “in-print.”

Also posted in Article A3, Section A3.2, Section A3.2(a), Section A3.2(a)(i), Section A3.2(a)(i)(2), Settlement | Comments closed

SA 03.2.1.1.3

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(3) A Book is not “in-print” if the author-publisher contract provides for reversion to the Author of rights in the Book and all of the criteria for reversion have been met (except that the Author need not have sent a request for reversion to the Publisher).

Also posted in Article A3, Section A3.2(a), Section A3.2(a)(i), Section A3.2(a)(i)(3), Settlement | Comments closed

SA 03.2.1.2

One response to “SA 03.2.1.2”

  1. ehasbrouck says:

    Many publishers are trying to define an “e-book” or “Kindle Edition” as a “new edition of a book” rather than a license of electronic rights. The failure to include in this section a requirement for a “new edition” to be in hard copy means that a publisher could try to use a “Kindle Edition” to satisfy the “in print” requirement and delay the reversion of rights. (Publishers would want to do this in order to share in the Revenue Model revenues, since once the rights revert the author could licnse the book directly as self-publisher of an electronic version, for 100% of the revenues.)

(ii) Test 2:

To the extent consistent with any rights in the Book that it may have under the author-publisher contract, the Publisher publicly has announced to the trade that it has undertaken concrete steps to publish an existing or new edition of the Book, and such edition is published within twelve (12) months of the announcement.

Also posted in Article A3, Section A3.2, Section A3.2(a), Section A3.2(a)(ii), Settlement | Comments closed

SA 03.2.2

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(b) If neither of the Tests in Section 3.2(a)(i) or (ii) is met, then the Book shall be classified as Out-of-Print.

Also posted in Article A3, Section A3.2, Section A3.2(b), Settlement | Comments closed

SA 03.3

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Procedures for Changing Classification of a Book.

Also posted in Article A3, Section A3.3, Settlement | Comments closed

SA 03.3.1

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(a) An In-Print Book shall be reclassified as an Out-of-Print Book if, pursuant to Section 3.2(d)(i) (Basis for Determination) of the Settlement Agreement such Book is determined to be not Commercially Available unless, pursuant to Article III, an Author or Publisher of such Book (or the Author directors or Publisher directors of the Board of Directors of the Registry, respectively) demonstrates to the Registry, and the Registry finds, that such Book meets either Test 1 or Test 2.

Also posted in Article A3, Section A3.3, Settlement | Comments closed

SA 03.3.2

One response to “SA 03.3.2”

  1. ehasbrouck says:

    This clause would substitute the arbitration procedures of the settlement for the procedures provided for by existing publisher-author contracts for detemining whether a book is “in print”. This is one of the several ways that the settlement would alter exisiting publisher-author relationships and contracts, in ways generally advantageous to publishers and detrimental to authors.

(b) An Author or Publisher of a Book, or the Author directors or Publisher directors of the Board of Directors of the Registry, respectively, challenging the classification of such Book as In-Print or Out-of-Print shall file a notice with the Registry with evidence (such as contracts, royalty statements, or trade announcements) sufficient to establish whether that Book meets either Test 1 or Test 2 (such evidence may, if no documentary evidence is reasonably available, include an affidavit).

Also posted in Article A3, Section A3.3, Section A3.3(b), Settlement | Comments closed

SA 03.3.3

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(c) The Registry shall notify the other party of such challenge and evidence. If the other party, upon receipt of such notice, does not object and provide evidence rebutting the challenge within one hundred twenty (120) days from the time such notice is sent by the Registry, and the Registry finds that the evidence is sufficient toestablish whether or not the Book meets either Test 1 or Test 2, then the Registry will deem the challenger’s evidence dispositive and will promptly change the status of the Book from In-Print to Out-of-Print, or vice versa, as appropriate.

Also posted in Article A3, Section A3.3, Section A3.3(c), Settlement | Comments closed

SA 03.3.5

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(e) Any such determination by the Registry shall be final, provided, however:

Also posted in Article A3, Section A3.3, Section A3.3(e), Settlement | Comments closed

SA 03.3.5.1

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(i) A determination by the Registry that a Book classified as In-Print should actually be classified as Out-of-Print shall not preclude the Publisher of that Book from subsequently publishing the Book that would result in a further reclassification of the Book as In-Print, provided doing so is consistent with the terms of the author-publisher contract.

Also posted in Article A3, Section A3.3, Section A3.3(e), Section A3.3(e)(i), Settlement | Comments closed

SA 03.3.5.2

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(ii) Nothing precludes the Author of a Book from at any time challenging the status of that Book as In-Print on the ground that the Book fails to meet either Test 1 or Test 2.

Also posted in Article A3, Section A3.3, Section A3.3(e), Section A3.3(e)(ii), Settlement | Comments closed

SA 03.3.6

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(f) If (i) a challenge to the classification of a Book or group of Books is brought by the Author directors or the Publisher directors of the Board of Directors of the Registry pursuant to Section 3.2, (ii) such challenge is brought before the Board of Directors and (iii) the Board of Directors is unable to make any determination pursuant to Section 3.3(b), then the matter shall be submitted to dispute resolution pursuant to Article IX (Dispute Resolution) of the Settlement Agreement.

Also posted in Article A3, Section A3.3, Section A3.3(f), Settlement | Comments closed

SA 04

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Author-Controlled Determination

Also posted in Article A4, Settlement | Comments closed

SA 04.1

One response to “SA 04.1”

  1. ehasbrouck says:

    Despite the seemingly exhaustive list of definitions, the settlement nowhere defines what is meant by “reverted”. The implication seems to be a default assumption that any publisher-author contracted implicitly granted at least some electronic reproduction licnese to the publisher, which is directly contrary to Tasinsi v. NYT. What about books with respect to which the rights to electronic reproduction have not “reverted” to the author, because no such rights were ever granted to the publisher? What about books where the electronic rights were not granted to the publisher, but subject to a “subsidiary rights cluase” under which any sub rights license would require a new contract, with a specified publisher-author revenue split (which might or might not correspond to the split which would be providfed by the settlement revenue Models)?

Procedures. The following procedure shall apply in determining whether any Book for which the rights have not reverted to the Author (other than a Book that is a work-for-hire or for which the author-publisher contract does not provide for reversion of rights to the Author in any circumstances) shall be classified as Author-Controlled solely for purposes of the Revenue Models and other Registry-brokered licenses:

Also posted in Article A4, Section A4.1, Settlement | Comments closed

SA 04.1.1

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(a) An Author shall send or shall have previously sent to the Publisher(either before or after the Effective Date) a request for reversion to the Author of rights insuch Book, in accordance with the author-publisher contract.

Also posted in Article A4, Section A4.1, Section A4.1(a), Settlement | Comments closed

SA 04.1.2

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(b) If the Publisher does not respond or did not previously respond inwriting to such request within (i) ninety (90) days or (ii) the applicable written responseperiod specified in the author-publisher contract, if any (whichever period is longer) (the“Response Period”), then the Author may send a “Change Status Notice” to the Registry(with a copy to the Publisher). The Change Status Notice must:

Also posted in Article A4, Section A4.1, Section A4.1(b), Settlement | Comments closed

SA 04.1.2.1

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affirm that the Author believes that the Book is no longer“in-print,” as defined in Test 1 and that the Response Period has expired, and request that the Book be deemed to be Author-Controlled;

Also posted in Article A4, Section A4.1, Section A4.1(b), Section A4.1(b)(i), Settlement | Comments closed

SA 04.1.2.2

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(ii) include a copy of the request for reversion previously sent to the Publisher; and

Also posted in Article A4, Section A4.1, Section A4.1(b), Section A4.1(b)(ii), Settlement | Comments closed

SA 04.1.2.3

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(iii) include a copy of the applicable author-publisher contract if the Author has it.

Also posted in Article A4, Section A4.1(b), Section A4.1(b)(iii), Settlement | Comments closed

SA 04.1.3

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(c) Upon receipt of a Change Status Notice for a Book, the Registry shall escrow all revenues from Revenue Models thereafter owed to an Author and Publisher of the Book.

Also posted in Article A4, Section A4.1, Section A4.1(c), Settlement | Comments closed

SA 04.1.4

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(d) If, within one hundred twenty (120) days of the date of the Change Status Notice, the Publisher does not respond in writing to the Registry and the Author to dispute the Change Status Notice, the Registry shall deem the Book to be Author-Controlled. Such Author-Controlled Book shall be subject to Section 6.1(b) and escrowed revenues shall be distributed according to Section 6.2(a).

Also posted in Article A4, Section A4.1, Section A4.1(d), Settlement | Comments closed

SA 04.1.5

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(e) If, within one hundred twenty (120) days of the date of the Change Status Notice, the Publisher disputes the Change Status Notice, the parties shall submit the issues in dispute to the Registry for decision.

Also posted in Article A4, Section A4.1, Section A4.1(e), Settlement | Comments closed

SA 04.1.5.1

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(i) At either party’s request, the Registry shall review both parties’ documentary submissions, as well as any other relevant evidence, to determine whether the Book should be classified as In-Print or as Out-of-Print pursuant to the procedures and tests in Article III.

Also posted in Article A4, Section A4.1, Section A4.1(e), Section A4.1(e)(i), Settlement | Comments closed

SA 04.1.5.2

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(ii) The Registry shall review both parties’ documentary submissions, as well as any other relevant evidence, to determine whether rights in the Book are subject to reversion to the Author according to the terms of the author-publisher contract.

Also posted in Article A4, Section A4.1, Section A4.1(e), Section A4.1(e)(ii), Settlement | Comments closed

SA 04.1.5.3

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(iii) If the Registry determines that the conditions in the author publishercontract for reversion to the Author of rights in the Book have been met, the Registry shall deem the Book to be Out-of-Print and Author-Controlled, the Book shall be subject to Section 6.1(b), and all escrowed revenues shall be distributed according to Section 6.2(a).

Also posted in Article A4, Section A4.1, Section A4.1(e), Section A4.1(e)(iii), Settlement | Comments closed

SA 04.1.5.4

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(iv) If the Registry determines that the conditions in the author publisher contract for reversion to the Author of rights in the Book have not been met and that the Book is Out-of-Print, then the Out-of-Print Book shall be subject to Section 6.1(a) or 6.1(c), as applicable, and all escrowed revenues shall be distributed pursuant to Section 6.2(b) or 6.2(c), as applicable.

Also posted in Article A4, Section A4.1, Section A4.1(e), Section A4.1(e)(iv), Settlement | Comments closed

SA 04.1.5.5

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(v) If the Registry determines an Out-of-Print Book should be reclassified as an In-Print Book, then the In-Print Book shall be subject to Article V.

Also posted in Article A4, Section A4.1, Section A4.1(e), Section A4.1(e)(v), Settlement | Comments closed

SA 04.2

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Notification of Procedures. If a Publisher claims or registers a Book pursuant to Section 13.1(c)(ii)(2)(B) of the Settlement Agreement and an Author claims or registers the same Book pursuant to Section 13.1(c)(ii)(3)(B) of the Settlement Agreement, the Registry will notify both the Author and Publisher of such claims and of the procedures available under this Article IV.

Also posted in Article A4, Section A4.2, Settlement | Comments closed

SA 05

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In-Print Books

Also posted in Article A5, Settlement | Comments closed

SA 05.1

5 responses to “SA 05.1”

  1. ehasbrouck says:

    Why should both the Publisher and the Author be automatically considered Rightsholders? Shouldn’t that depend on the terms of the publisher-author contract? Automatically grnating publishers an interest and an ability to control the electronic rights to books to which they licensed only hardcopy publication rights would be a huge, unjustified, and uncompensated theft of authors’ rights, and a coerced transfer of those rights to publishers.

  2. Equally well, publishers might argue that it’s unfair and coerced to give authors a veto right over participation in the GBS programs where the publisher holds all the relevant copyrights. This decision seems to have been a deliberate compromise among negotiators rather than attempt to faithfully mimic the terms of contracts.

  3. ehasbrouck says:

    “This decision seems to have been a deliberate compromise among negotiators rather than attempt to faithfully mimic the terms of contracts.”

    I think you are right, but this wasn’t a lawsuit over disputes between authors and publishers over ownership of rights or interpretation of contracts between them. For the same reason, and because those disputes weren’t litigated in this case, it isn’t appropriate pre-emptively to resolve those serious disputes through this settlement, or to impose these settlement terms on author-publisher relations. The settlement should be framed in terms of the “holder(s) of rights to electronic reproduction”, as determined by existing law and contracts, regardless of whether those rightsholders are authors, publishers, or others. There’s neither any reason nor any need for the purposes of this settlement between the other parties and Google to redefine or reallocate rights between authors and publishers, or change the mechanisms specified by existing writer-publisher contracts for resolving disputes bwetween authors and publishers over who holds those rights.

  4. Gillian Spraggs says:

    “a huge, unjustified, and uncompensated theft of authors’ rights, and a coerced transfer of those rights to publishers” – ehasbrouck

    Absolutely. It is an appalling idea.

  5. “The commercial component of the Proposed Settlement also fails to satisfy the requirements of Rule 23(e)(2) because it will complicate and/or frustrate existing contractual agreements between authors and publishers.” — Objection of Scott E. Gant, p. 29ff

Permitted Uses. Both an Author (other than a work-for-hire Author) and the Publisher of an In-Print Book will be considered a Rightsholder for purposes of Section 3.5 (Right to Remove or Exclude) of the Settlement Agreement. Except for Books that are works-for-hire, for an In-Print Book, both the Author and the Publisher of such Book must agree, in accordance with the following procedure, that Google may make one or more Display Uses of the Book:

Also posted in Article A5, Section A5.1, Settlement | Comments closed

SA 05.1.1

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(a) The Publisher shall initially notify the Registry and the Author ofthe Book as to any and all Display Uses the Publisher wishes to authorize (e.g., whetheror not to allow Preview Use for a Book). The Author shall have the right, within thirty (30) days from the provision of such notice by the Publisher, to notify the Publisher andthe Registry that the Author does not authorize some or all of the requested Display Uses.The Display Uses requested by the Publisher shall commence after such thirty (30)-dayperiod absent notice from the Author that it does not authorize one or more of the requested Display Uses. If the Author objects to one or more Display Uses, then only the mutually authorized Display Uses shall commence.

Also posted in Article A5, Section A5.1, Section A5.1(a), Settlement | Comments closed

SA 05.1.2

3 responses to “SA 05.1.2”

  1. Gillian Spraggs says:

    Sections 5.1(c) to 11.6 are not here. There are some very important provisions in those sections: on allocation of payments, the treatment of unclaimed funds, the resolution of disputes, etc

  2. Thanks. We’ve noticed this too, and are trying to figure out what’s going wrong and how to fix it.

(b) After the thirty (30)-day period in Section 5.1(a), each of the Author and the Publisher for an In-Print Book shall continue to be considered a Rightsholder for purposes of Section 3.5 (Right to Remove or Exclude) of the Settlement Agreement (i.e., for purposes of directing Removal, exclusion, changes in Display Uses and/or levels of access for any Revenue Model) and Section 5.2 will apply.

Also posted in Article A5, Section A5.1, Section A5.1(b), Settlement | Comments closed

SA 05.1.3

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(c) Nothing herein precludes an Author from informing the Publisher and the Registry at any time that the Author wants the Book made available for one or more Display Uses.

Also posted in Article A5, Section A5.1, Section A5.1(c), Settlement | Comments closed

SA 05.2

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Removal; Exclusion; Changes in Display Uses. Subject to Section 5.3, either the Author or the Publisher may direct the Registry to Remove or exclude, or change Display Uses of, an In-Print Book pursuant to Section 3.5 (Right to Remove or Exclude) of the Settlement Agreement, and, upon such direction, the Registry will notify Google and either the Author or the Publisher of the Book, as appropriate.

Also posted in Article A5, Section A5.2, Settlement | Comments closed

SA 05.3

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Conflicting Directions. If, at any time, the Author and the Publisher of a Book issue conflicting directions to the Registry for an In-Print Book pursuant to Section 3.5 (Right to Remove or Exclude) of the Settlement Agreement, the more restrictive directions as to Removal, exclusions, changes in Display Uses or levels of access will control (i.e., the Registry shall act in accordance with the request authorizing the fewest or most limited uses of the In-Print Book).

Also posted in Article A5, Section A5.3, Settlement | Comments closed

SA 05.4

2 responses to “SA 05.4”

  1. ehasbrouck says:

    Why should the publisher have sole authority to set the price for e-books, regardless of what terms for rpicing may be contained in the publisher-author contract? Another transfer of decision-making power from authors to publishers, overriding the terms of previously negotiated author-publisher contracts.

  2. Note, however, that the publisher can’t offend the author too much, as otherwise the author can simply threaten to pull the book entirely under the Section 3.5 agreement. In pure game-theory terms, this tends to favor publishers, but the publisher can’t ignore the author’s desires entirely.

Control of Pricing. If, either by the procedure set forth in Section 5.1 or pursuant to a Transfer Request under Article X for an In-Print Book in an Other Google Program, the Publisher and Author agree to authorize one or more Display Uses for aBook, then the Publisher has the right to determine the pricing of the Book for Consumer Purchase, provided, however, that an Author will continue to be considered a Rightsholder pursuant to Section 3.5 (Right to Remove or Exclude) of the Settlement Agreement with rights to Remove or exclude the Book if the Author objects to the pricing.

Also posted in Article A5, Section A5.4, Settlement | Comments closed

SA 05.5

3 responses to “SA 05.5”

  1. ehasbrouck says:

    All paymets to authors for flow first through the registry, and then through the publisher? Why? And if the author doesn’t like it, their only recourse is arbitration — even if the publisher doesn’t own the e-rights, and would otherwise be liable to the author for statutory damages? Another transfer of power from authors to publishers.

  2. Payment through the Registry makes sense; all payments get funneled through them. I don’t know enough about the book industry to say whether funneling through the publisher also makes sense, but my (perhaps naive) impression was that this is how ordinary sales and licensing works most of the time.

  3. ehasbrouck says:

    That may be true “most of the time” under the most recent and standard large-publisher contracts, but it’s governed by existing contracts, if any. (The authors with the most to lose from the settlement may be those who successfully negotiated better-than-average terms.) In the case of the majority of contracts for in-copyright books that were published before the Internet was envisaged, the author never assigned any electronic rights to the author. The “typical” author-publisher contract for older books (i.e. most in-copyright books) is one in which the author owns 100% of the electronic rights, and is entitled to collect and receive any revenues for them directly, not through the print publisher.

Distribution of Payments/Revenues. All payments under Section 5.1 (Cash Payments to Class Members Whose Books and Inserts Have Been Digitized) of the Settlement Agreement and all revenues from Revenue Models for In-Print Books shall be remitted by the Registry to the Publisher and flow through the royalty statements of thePublisher. The Publisher shall provide to the Author the appropriate splits or royalties as may be specified in the author-publisher contract for the Book or as the parties may otherwise agree. If an Author wishes to dispute the split or royalty rate paid by thePublisher on such revenues, Article VII shall apply, provided, however, that Article VII shall not apply to Educational Books.

Also posted in Article A5, Section A5.5, Settlement | Comments closed

SA 06

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Out-Of Print Books

Also posted in Article A6, Settlement | Comments closed

SA 06.1

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Permitted Uses and Pricing. The following terms shall apply with respect to uses of Out-of-Print Books:

Also posted in Article A6, Section A6.1, Settlement | Comments closed

SA 06.1.1

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(a) For all Out-of-Print Books that are works-for-hire, only the Publisher of such Books shall be considered the Rightsholder for purposes of directing Removal, exclusion, changes in Display Uses and/or levels of access for any Revenue Model. The Publisher will control the pricing for Consumer Purchase of any such Books.

Also posted in Article A6, Section A6.1, Section A6.1(a), Settlement | Comments closed

SA 06.1.2

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(b) For all Out-of-Print Books for which the rights have reverted to the Author or are determined to be Author-Controlled, only an Author of such Books shall be considered a Rightsholder for purposes of directing Removal, exclusion, changes in Display Uses and/or levels of access for any Revenue Model. The Author will control the pricing for Consumer Purchase of such Books.

Also posted in Article A6, Section A6.1, Section A6.1(b), Settlement | Comments closed

SA 06.1.3

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(c) For all Out-of-Print Books for which the rights have not reverted to the Author and that are neither works-for-hire nor Author-Controlled, both (i) the Author and (ii) the Publisher shall be considered the Rightsholder for purposes of directing Removal, exclusion, changes in Display Uses and/or levels of access for any Revenue Model, provided, however, that any such direction by the Publisher must be for good reason articulated (e.g., for the Publisher’s legal, technical, editorial, policy, commercialor economic reasons), provided, further that, for purposes of the foregoing proviso, Removing, excluding or restricting Display Uses and/or levels of access for any Revenue Model for the purpose of benefiting any other book with which such Out-of-Print Book might compete is not a “good reason.” If, at any time, an Author and the Publisher of a Book issue conflicting directions to the Registry regarding the uses authorized for such Out-of-Print Book, the more restrictive directions as to levels of access will control (i.e.,the Registry shall act in accordance with the request authorizing the fewest or most limited uses of the Out-of-Print Book). Either an Author or the Publisher may set the price for Consumer Purchase of any such Books, provided, however:

Also posted in Article A6, Section A6.1, Section A6.1(c), Settlement | Comments closed

SA 06.1.3.1

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(i) upon receipt of a request to change the price for Consumer Purchase of such Book, the Registry shall notify the other party, if such a party has been identified; and

Also posted in Article A6, Section A6.1, Section A6.1(c), Section A6.1(c)(i), Settlement | Comments closed

SA 06.1.3.2

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(i) upon receipt of a request to change the price for Consumer Purchase of such Book, the Registry shall notify the other party, if such a party(ii) in the case of a timely objection by the other party, theRegistry will maintain the higher of the prices specified until the parties can agree on anew price for Consumer Purchase has been identified; and

Also posted in Article A6, Section A6.1, Section A6.1(c), Section A6.1(c)(ii), Settlement | Comments closed

SA 06.2

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Distribution of Payments/Revenues. All payments under Section 5.1 (Cash Payment to Class Members Whose Books and Inserts Have Been Digitized) of the Settlement Agreement and revenues earned from Revenue Models shall be distributed by the Registry as follows:

Also posted in Article A6, Section A6.2, Settlement | Comments closed

SA 06.2.1

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(a) For Out-of-Print Books for which the rights have reverted to the Author or are Author-Controlled, the Registry will remit one hundred percent (100%) of such revenues to the Author.

Also posted in Article A6, Section A6.2, Section A6.2(a), Settlement | Comments closed

SA 06.2.2

Comments are closed.

(b) For Out-of-Print Books that are solely works-for-hire, the Registry will remit one hundred percent (100%) of such revenues to the Publisher.

Also posted in Article A6, Section A6.2, Section A6.2(b), Settlement | Comments closed

SA 06.2.3

Comments are closed.

(c) For Out-of-Print Books other than those described in Sections 6.2(a) and 6.2(b), the Registry will separately remit payment to both the Author and the Publisher as follows:

Also posted in Article A6, Section A6.2, Section A6.2(c), Settlement | Comments closed

SA 06.2.3.1

3 responses to “SA 06.2.3.1”

  1. ehasbrouck says:

    What if the publisher-author contract provides for a different split? Why should the settlement reallocate revenue share between publishers and authors, overriding exisitng publisher-author contracts?

  2. To be clear, this section overrides contracts. That’s one reason that some authors are upset. My understanding is that the parties to the settlement wanted to create a simple system, and they thought that 65/35 was a fair compromise of their estimates of what the average contract looked like and where the law lay. They have said publicly that this was one of the disputed terms between authors and publishers; I suppose the question for class members deciding whether to opt out or not is whether they think their representatives won or lost that negotiation.

  3. ehasbrouck says:

    But this wasn’t a lawsuit between publishers and authors as adversaries, or in which their disputes with each other could be or were propoerly litigated. Authors couldn’t, for example, conduct discovery of publishers, since they had presented no complaint against them. The question presented in the complaints — whether Google violated the rightsholders’ rights — is completely independent of who owns those rights, and there is no need to address the dispute between print publishers and authors over rights ownership and revenue share in order to settle the claims against Google. A settlement could just as easily have been written in terms of “rightsholders”, with no particular reference to print “publishers” or “authors”, leaving them to resolve their disputes with each other separately. This settlement is as much a (surreptitious) settlement and IMHO sell-out of authors’ (unlitigated) claims against print publishers as a settlement of anyone’s claims against Google, and needs to be evaluated on that basis. This is more than a question of “whether to opt out” but of whether the settlement should be approved.

(i) For such Out-of-Print Books with a Publication Year prior to 1987, the Registry will pay out sixty-five percent (65%) of such revenues to the Author and thirty-five percent (35%) to the Publisher.

Also posted in Article A6, Section A6.2, Section A6.2(c), Section A6.2(c)(i), Settlement | Comments closed

SA 06.2.3.2

Comments are closed.

(ii) For such Out-of-Print Books with a Publication Year during or after 1987, the Registry will pay out fifty percent (50%) of such revenues to the Author and fifty percent (50%) to the Publisher.

Also posted in Article A6, Section A6.2, Section A6.2(c), Section A6.2(c)(ii), Settlement | Comments closed

SA 06.2.3.3

Comments are closed.

(iii) For purposes of this Section 6.2(c), “Publication Year”means the earliest copyright year that appears in or on the Book, or if no copyright yearappears in or on the Book, the year of initial publication set forth in a copyright registration for the Book.

Also posted in Article A6, Section A6.2, Section A6.2(c), Section A6.2(c)(iii), Settlement | Comments closed

SA 06.2.3.4

3 responses to “SA 06.2.3.4”

  1. ehasbrouck says:

    So this settlement overides any such debt the publisher would owe under existing publisher-author contracts?

  2. I don’t believe so. If the publisher owes the author a past debt, the publisher owes the author, and that’s that; nothing changes. This statement merely says that when the Registry pays the Author 65% and the Publisher 35%, the Author isn’t entitled to further royalties out of the Publisher’s 35%.

  3. ehasbrouck says:

    I wasn’t talking about past debts, but about the money that would be owed if the revenues were divided according to exisitng contracts. I think James grimmleman states it correctly: “the Author isn’t entitled to further royalties out of the Publisher’s 35%,” even if the author would have been so entitled under the terms of the exisitng author-publisher contract.

(iv) The Publisher will not owe splits or royalties to the Author on the revenues remitted to the Publisher by the Registry under this Section 6.2.

Also posted in Article A6, Section A6.2(c), Section A6.2(c)(iv), Settlement | Comments closed

SA 06.3

Comments are closed.

Author Claim of Reversion. If an Author in claiming or registering an Out-of-Print Book pursuant to Section 13.1(c)(ii)(B) of the Settlement Agreement indicates that, to the best of the Author’s knowledge, such Book is not a work-for-hire and is reverted, and a Publisher claims or registers the same Book pursuant to Section 13.1(c)(ii)(2)(B) of the Settlement Agreement, then such Book will be presumed reverted for purposes of this Article VI and solely for purposes of the Revenue Models and exercising rights under the Settlement Agreement and other Registry-brokered licenses. The Registry shall notify such Publisher of such indication by the Author. If, within a reasonable time after such notification, the Publisher comes forward with evidence that the Author is not a Rightsholder of the Book and/or the Book is not reverted, the Registrywill notify the Author as to such evidence and give the Author an opportunity to submit his or her own evidence. If there is a dispute based on the evidence submitted to the Registry by the Author and the Publisher, the dispute will be resolved pursuant to Article IX (Dispute Resolution) of the Settlement Agreement based on all the evidence presented. In each such dispute, the Arbitrator will determine who shall bear the burden of proof under the circumstances.

Also posted in Article A6, Section A6.3, Settlement | Comments closed

SA 06.4

Comments are closed.

Resolving Conflicting Claims. Except where otherwise specifically provided in these Author-Publisher Procedures, if both an Author and a Publisher claim or register an Out-of-Print Book other than an Educational Book and there is a conflict between their Claim Forms with respect to their asserted rights in the Book, the Author and the Publisher shall follow the procedures in this Section 6.4. First, the parties shall attempt to resolve the matter informally. If they are unable to do so, either party may submit the dispute to the Registry for resolution. After a decision by the Registry, either party may thereafter submit the dispute for resolution pursuant to Article IX (Dispute Resolution) of the Settlement Agreement. In reaching a decision, the Registry or theArbitrator will give primary consideration to the terms of the written contract and amendments thereto, if any, between the parties. If the contract has no conclusive or determinative wording, the Registry or the Arbitrator may consider extrinsic evidence, including documents, affidavits, the course of dealing between the parties, or industry standards and practices.

Also posted in Article A6, Section A6.4, Settlement | Comments closed

SA 07

Comments are closed.

Disputes

Also posted in Article A7, Settlement | Comments closed

SA 07.1

Comments are closed.

Scope. This Article VII shall apply to disputes:

Also posted in Article A7, Section A7.1, Settlement | Comments closed

SA 07.1.1

Comments are closed.

(a) Between an Author and a Publisher referenced in Section 5.5, except if the dispute regards an Educational Book, provided, however that if the dispute concerns whether a Book is an Educational Book, then that dispute shall be subject to Article IX (Dispute Resolution) of the Settlement Agreement;

Also posted in Article A7, Section A7.1, Section A7.1(a), Settlement | Comments closed

SA 07.1.2

Comments are closed.

(b) Between and among non-Publisher Rightsholders (e.g., co-authors and heirs and assignees of an Author) with respect to pricing, Removal, inclusion or exclusion of a Book, or authorization of one or more Display Uses of a Book, under the Settlement Agreement.

Also posted in Article A7, Section A7.1, Section A7.1(b), Settlement | Comments closed

SA 07.2

Comments are closed.

Procedures. The following procedures shall apply to disputes described in Section 7.1:

Also posted in Article A7, Section A7.2, Settlement | Comments closed

SA 07.2.1

Comments are closed.

(a) The Rightsholder will notify the Registry of a dispute; the Registrywill not pay any Rightsholder for the Book until after a final decision according to the procedures in this Article VII.

Also posted in Article A7, Section A7.2, Section A7.2(a), Settlement | Comments closed

SA 07.2.2

Comments are closed.

(b) After notification to the Registry of a dispute, the parties will attempt to resolve the dispute amicably. If no such resolution is reached within ninety (90) days from the date the Registry was notified of such dispute (which period can be extended by agreement of the parties), any party can submit the dispute for resolution under the procedures of Section 9.3 (Arbitration) of the Settlement Agreement, subject to the additional terms of this Article VII, and all parties to the dispute will then be bound to follow such procedures to resolve such dispute.

Also posted in Article A7, Section A7.2, Section A7.2(b), Settlement | Comments closed

SA 07.2.3

Comments are closed.

(c) All decisions of the Arbitrator will be binding. In reaching adecision, the Arbitrator will give primary consideration to the terms of the written contract and amendments thereto, if any, between the parties. If the contract has no conclusive or determinative wording, the Arbitrator may consider extrinsic evidence, including documents, affidavits, the course of dealing between the parties, or industry standards and practices.

Also posted in Article A7, Section A7.2, Section A7.2(c), Settlement | Comments closed

SA 07.3

Comments are closed.

Fees. The Registry shall set filing fees for disputes taking into account the objectives of facilitating dispute resolution, deterring frivolous filings and defraying the Registry’s expenses, such that the dispute resolution process benefits Rightsholders but does not unduly financially burden the Registry.

Also posted in Article A7, Section A7.3, Settlement | Comments closed

SA 07.3.1

Comments are closed.

(a) In cases of disputes brought pursuant to Section 7.1(a), the party submitting the dispute to the Arbitrator shall pay a filing fee to the Registry of $300 (subject to adjustment by the Registry), and if such party is the prevailing party, half of such filing fee will be refunded at the conclusion of the arbitration.

Also posted in Article A7, Section A7.3, Section A7.3(a), Settlement | Comments closed

SA 07.3.2

Comments are closed.

(b) The Registry will adopt fees and rules for disputes brought pursuant to Section 7.1(b, which may differ from those adopted for disputes brought pursuant to Section 7.1(a).

Also posted in Section A7.3, Section A7.3(b), Settlement | Comments closed

SA 07.3.3

Comments are closed.

(c) Except as provided in this Section 7.3, all costs of the dispute resolution process will be borne by the Registry.

Also posted in Article A7, Section A7.3, Section A7.3(c), Settlement | Comments closed

SA 08

Comments are closed.

Unclaimed Funds

Also posted in Article A8, Settlement | Comments closed

SA 08.1

Comments are closed.

Unclaimed Authors’ Funds. If revenues earned by an Out-of-Print Book are owed to the Author pursuant to Section 6.3(a) (Unclaimed Funds and Public Domain Funds) of the Settlement Agreement but the Author fails to register with the Registry, the revenues to which the Author otherwise is entitled shall be designated UnclaimedAuthor’s Funds. All such Unclaimed Authors’ Funds shall be subject to Section 6.3(a)(Unclaimed Funds and Public Domain Funds) of the Settlement Agreement and, if distributed by the Registry to Rightsholders pursuant to that section, shall be distributed to Registered Rightsholders who are Authors.

Also posted in Article A8, Section A8.1, Settlement | Comments closed

SA 08.2

Comments are closed.

Unclaimed Publishers’ Funds. If revenues earned by an Out-of-PrintBook are owed to the Publisher pursuant to Section 6.3(a) (Unclaimed Funds and Public Domain Funds) of the Settlement Agreement but the Publisher fails to register with theRegistry, the revenues to which the Publisher otherwise is entitled shall be designated Unclaimed Publishers’ Funds. All such Unclaimed Publishers’ Funds shall be subject to Section 6.3(a) (Unclaimed Funds and Public Domain Funds) of the SettlementAgreement and, if distributed by the Registry](http://www.thepublicindex.org/archives/category/settlement/s-6) to Rightsholders](http://www.thepublicindex.org/archives/category/settlement/s-1/s-1-132) pursuant to that section, shall be distributed to Registered Rightsholders who are Publishers.

Also posted in Article A8, Section A8.2, Settlement | Comments closed

SA 08.3

Comments are closed.

Allocation of Unclaimed Funds. All revenues earned by Books that neither an Author nor a Publisher claims within five (5) years after the end of the reporting period during which such revenues were earned will be allocated between the Unclaimed Authors’ Fund and the Unclaimed Publishers’ Fund pursuant to Section 6.2(c), based on the Publication Year of such Books.

Also posted in Article A8, Section A8.3, Settlement | Comments closed

SA 08.4

Comments are closed.

Timing of Payments. No payments under Section 5.1 (Cash Payment to Class Members Whose Books and Inserts Have Been Digitized) of the Settlement Agreement or revenues from the Revenue Models shall be paid or distributed to Authors or Publishers until the Effective Date or one (1) year after the Final Approval Date, whichever is later, so that Authors or Publishers or their representatives may submit challenges, pursuant to Article III, to the initial classifications of Books. With respect to Books for which the initial classifications are challenged in that time period, payments under Section 5.1 (Cash Payment to Class Members Whose Books and Inserts Have Been Digitized) of the Settlement Agreement and revenues from the Revenue Models shall not be paid to Authors or Publishers until the challenges are resolved pursuant to Article III.

Also posted in Article A8, Section A8.4, Settlement | Comments closed

SA 09

Comments are closed.

Releases and Precedential Effect

Also posted in Article A9, Settlement | Comments closed

SA 09.1

Comments are closed.

Releases. Except as set forth in Sections 9.2 and 10.3, nothing herein shall constitute a release of any claim by an Author against a Publisher or by a Publisher against an Author, and all rights to bring such claims are expressly reserved by Authors and Publishers.

Also posted in Article A9, Section A9.1, Settlement | Comments closed

SA 09.2

Comments are closed.

All Claims Governed. The provisions of these Author-Publisher Procedures shall govern all claims and disputes between Authors and Publishers regarding the inclusion and exploitation of any Book in the Revenue Models, and (except for Educational Books) the royalty splits for revenue derived from the Revenue Models.

Also posted in Article A9, Section A9.2, Settlement | Comments closed

SA 09.3

Comments are closed.

No Precedential Effect. Any decisions of the Registry (or of an Arbitrator pursuant to Article IX (Dispute Resolution) of the Settlement Agreement) with respect to any dispute brought pursuant to these Author-Publisher Procedures will be final. Except as expressly provided in Article X, any such decision, including but not limited to decisions made pursuant to Articles III, IV, VI, VII or X, shall apply solely with respect to and for purposes of the Settlement Agreement, the Revenue Models, and any other Registry-brokered licenses. Neither a Publisher nor an Author, nor either’s agent or associational representative, may rely on or cite the Registry’s determination with respect to an individual Book, or any group or pattern of determinations, as legal or other precedent or authority, “course of dealing,” “industry practice,” or otherwise, as an aid or support in the negotiation, enforcement, interpretation and/or construction of an author publisher contract, nor with respect to any other Books or any programs other than the Revenue Models or other Registry-brokered licenses.

Also posted in Article A9, Section A9.3, Settlement | Comments closed

SA 10

Comments are closed.

Other Google Programs

Also posted in Article A10, Settlement | Comments closed

SA 10.1

Comments are closed.

Application of Decisions. For each In-Print Book published under an author-publisher contract executed prior to 1992 that has not been amended thereafter to expressly grant or retain all electronic rights pertinent to the Revenue Models or any Other Google Program, any decision in a dispute initiated pursuant to Section 5.5 regarding the royalty split for a Display Use of that Book will also apply to all royalty splits for uses of that Book in any Other Google Programs that are the same as or substantially identical to that Display Use.

Also posted in Article A10, Section A10.1, Settlement | Comments closed

SA 10.2

Comments are closed.

Take Down and Transfer Requests. The following procedures will apply to each In-Print Book (except for Educational Books) that is the subject of an author publisher contract executed prior to 1992 that has not been amended thereafter to expressly grant or retain all electronic rights pertinent to an Other Google Program if such Book is displayed in an Other Google Program:

Also posted in Article A10, Section A10.2, Settlement | Comments closed

SA 10.2.01

Comments are closed.

(a) A Rightsholder who has a good faith belief that Google is exploiting such Book in an Other Google Program without the necessary authorizationfrom such Rightsholder (the “Notifying Rightsholder”), may, by using the form of notice described in Section 10.2(b) (the “Notice”), request, through the Registry, that Google either remove such Book from such Other Google Program (a “Take Down Request”) or transfer such Book from the Other Google Program to one or more Display Uses in one or more of the Revenue Models (a “Transfer Request”).

Also posted in Section A10.2, Section A10.2(a), Settlement | Comments closed

SA 10.2.02

Comments are closed.

(b) The form of Notice is Exhibit A hereto, and will be available online (including through the Registry’s website).

Also posted in Article A10, Section A10.2, Section A10.2(b), Settlement | Comments closed

SA 10.2.03

Comments are closed.

(c) The Notifying Rightsholder shall submit the Notice to the Registry. Upon receipt, the Registry shall forward a copy of the Notice to Google, and the person who had given Google permission to use such Book (the “Initial Authorizing Rightsholder”) will be sent a copy of the Notice by Google pursuant to Section 3.5.(c)(ii)(1) of the Settlement Agreement.

Also posted in Article A10, Section A10.2, Section A10.2(c), Settlement | Comments closed

SA 10.2.04

Comments are closed.

(d) The Initial Authorizing Rightsholder shall have thirty (30) days to respond to the Notice, as set forth in Sections 10.2(e) or 10.2(h). If Google, pursuant to Section 3.5(c)(ii)(2) of the Settlement Agreement, transfers such Book into the Revenue Models, such Book shall become subject to these Author-Publisher Procedures, as applicable.

Also posted in Article A10, Section A10.2, Section A10.2(d), Settlement | Comments closed

SA 10.2.05

Comments are closed.

(e) If the Notice is a Take Down Request, the Initial Authorizing Rightsholder may respond, at its election, by:, as applicable.

Also posted in Article A10, Section A10.2, Section A10.2(e), Settlement | Comments closed

SA 10.2.05.1

Comments are closed.

(i) Not objecting to the Take Down Request; or

Also posted in Article A10, Section A10.2, Section A10.2(e), Section A10.2(e)(i), Settlement | Comments closed

SA 10.2.05.2

Comments are closed.

(ii) Objecting to the Take Down Request by filing with the Registry a counter notice that states, under penalty of perjury, that the Initial Authorizing Rightsholder has the good faith belief that he, she or it has rights in such Book necessary to authorize Google to exploit such Book as it is being exploited in such Other Google Program (the “Counter-Notice”). The Counter- Notice shall include documentation supporting such belief.

Also posted in Article A10, Section A10.2, Section A10.2(e), Section A10.2(e)(ii), Settlement | Comments closed

SA 10.2.06

Comments are closed.

(f) The form of Counter-Notice is Exhibit B, and will be available online (including through the Registry’s website).

Also posted in Article A10, Section A10.2(f), Settlement | Comments closed

SA 10.2.07

Comments are closed.

(g) The Registry shall forward the Counter-Notice to Google and the Notifying Rightsholder. If the Counter-Notice requirements are complied with, then:

Also posted in Article A10, Section A10.2, Section A10.2(g), Settlement | Comments closed

SA 10.2.07.1

Comments are closed.

(i) If, pursuant to Section 3.5(c)(ii)(3) of the Settlement Agreement, Google does not maintain or restore access to such Book in the Other Google Program, then the Initial Authorizing Rightsholder may file a lawsuit against the Notifying Rightsholder (or follow the dispute resolution procedures in the author publisher contract) to determine who has the right to authorize Google to exploit such Book in the Other Google Program; or

Also posted in Article A10, Section A10.2, Section A10.2(g), Section A10.2(g)(i), Settlement | Comments closed

SA 10.2.07.2

Comments are closed.

(ii) If Google does maintain or restore access, then the Notifying Rightsholder may file a lawsuit against the Initial Authorizing Rightsholder (or follow the dispute resolution procedures in the author-publisher contract) to determine who has the right to authorize Google to exploit such Book in the Other Google Program.

Also posted in Article A10, Section A10.2, Section A10.2(g)(ii), Settlement | Comments closed

SA 10.2.08

Comments are closed.

(h) If the Notice is a Transfer Request, the Initial Authorizing Rightsholder may respond, at its election, by:

Also posted in Article A10, Section A10.2, Section A10.2(h), Settlement | Comments closed

SA 10.2.08.1

Comments are closed.

(i) Not objecting to such Book being moved into the Revenue Models; or

Also posted in Article A10, Section A10.2, Section A10.2(h), Section A10.2(h)(i), Settlement | Comments closed

SA 10.2.08.2

Comments are closed.

(ii) Objecting to the Transfer Request by filing a notice ofobjection with the Registry.

Also posted in Article A10, Section A10.2, Section A10.2(h), Section A10.2(h)(ii), Settlement | Comments closed

SA 10.2.09

Comments are closed.

(i) If the Initial Authorizing Rightsholder objects to the Transfer Request pursuant to Section 10.2(h)(ii), then:

Also posted in Article A10, Section A10.2, Section A10.2(i), Settlement | Comments closed

SA 10.2.09.1

Comments are closed.

(i) The provisions of Section 3.5(c)(ii)(4) and (5) of the Settlement Agreement will apply; and

Also posted in Article A10, Section A10.2, Section A10.2(i), Section A10.2(i)(i), Settlement | Comments closed

SA 10.2.09.2

Comments are closed.

(ii) Either the Notifying Rightsholder or the Initial Authorizing Rightsholder may file a lawsuit against the other (or otherwise follow the dispute resolution procedures in the author-publisher contract) to assert that it has the rights to exploit such Book in either the Revenue Models or Other Google Programs, and nothing in these Author-Publisher Procedures or the Settlement Agreement may be read to release or waive any such claims.

Also posted in Article A10, Section A10.2, Section A10.2(i), Section A10.2(i)(ii), Settlement | Comments closed

SA 10.2.10

Comments are closed.

(j) To the extent that any provision of this Article X conflicts with anyother provision of these Author-Publisher Procedures, the provision of this Article X shall control.

Also posted in Article A10, Section A10.2, Section A10.2(j), Settlement | Comments closed

SA 10.3

Comments are closed.

Retention of Rights. All Rightsholders will retain any and all rights that they have under 17 U.S.C. § 512 with respect to all Books in Other Google Programs, except that Rightsholders will instead follow the procedures in this Article X for all Books covered by this Article X.

Also posted in Article A10, Section A10.3, Settlement | Comments closed

SA 11

Comments are closed.

Miscellaneous

Also posted in Article A11, Settlement | Comments closed

SA 11.1

Comments are closed.

Delegation. The Registry may delegate one or more of the functions specified in Articles III, IV or VI to an Arbitrator designated pursuant to Article IX (Dispute Resolution) of the Settlement Agreement.

Also posted in Article A11, Section A11.1, Settlement | Comments closed

SA 11.2

Comments are closed.

Notice. All notices, demands and requests as specified herein shall begiven to the parties specified herein and not pursuant to Sections 17.15(a) (Legal [Notices)and 17.15(b) (Other Notices) of the Settlement Agreement, and shall be in writing. Such notices, demands and requests shall be sent by e-mail (if practicable), postal mail, or other delivery methods. Notice shall be deemed received upon proof of receipt.

Also posted in Article A11, Section A11.2, Settlement | Comments closed

SA 11.3

Comments are closed.

Assistance. Publishers and Authors shall use commercially reasonable efforts to provide author-publisher contracts to assist the Registry (or Arbitrator) in classifying Books as In-Print or Out-of-Print and in resolving disputes brought pursuant to these Author-Publisher Procedures, subject to an appropriate confidentiality agreementthat will be executed by each party.

Also posted in Article A11, Section A11.3, Settlement | Comments closed

SA 11.4

3 responses to “SA 11.4”

  1. ehasbrouck says:

    So there’s no guarantee that authors will have even these protections against publishers — if the board of the registry tips even slightly in favor of publishers, all author redress against publishers’ theft of rights could be eliminated. And with an even number of registry board members (who ever heard of a functional board with an even number of members?), the board will typically be deadlocked on publisher-author disputes, so overturning such a deciuison, resulting form a brief imbalance on the board (e.g. a temporary vacancy), could be impossible until the next such imbalance.

  2. I think the phrase “provided, however, that no amendment may impair the rights of the Settlement Class” puts a limit on what the Registry can do. I wonder what degree of change to the procedures would be considered to “impair” their “rights.”

  3. ehasbrouck says:

    I’m not sure if the reference to “rights” would be read as referring to authors’ rights vis-a-vis print publishers, or only vis-a-vis Google, since authors’ claims (numerous, serious, and ongoing) against print publishers were not presented in the complaints or intended to be litigated in these cases. In any case, the structure of the Registry appears to be a recipe for capture by publishers at worst, and disfunctional deadlock at best. And in any case, many facially neutral procedural changes would actually benefit publishers as large corporations over individual authors (just as the imposition of binding arbitration on a book-by-book or author-by-author basis would benefit publishers by depriving authors of the possibility of either collective bargaining, or of litigation for statutory damages when publishers are party to coyright infringement by purporting to license e-rights they don’t own).

Amendments. The Registry may amend the terms of these Author-Publisher Procedures pursuant to Section 17.27 (Amendments) or otherwise; provided,however, that no amendment may impair the rights of the Settlement Class, or, without Google’s consent, Google’s rights, under the Settlement Agreement. The Registry shall not make any such amendment except with a vote of the Board of the Directors of the Registry, in accordance with is By-Laws.

Also posted in Article A11, Section A11.4, Settlement | Comments closed

SA 11.5

Comments are closed.

No Liability For Settlement or Administration. No Rightsholderwill have any claim against any Plaintiff, Class Counsel, Google or the Registry for (i)any decision with respect to payment of any Cash Payment under Section 5.1 (Cash Payment to Class Members Whose Books and Inserts Have Been Digitized) of the Settlement Agreement or (ii) actions taken in good faith for payments or other disbursements from the Settlement Fund. Except as expressly set forth herein, these Author-Publisher Procedures are not intended to, nor shall they in any way be construed or interpreted to, create or support any cause of action or any claim for damages or injunctive relief against any Plaintiff, Class Counsel, Google or the Registry.

Also posted in Article A11, Section A11.5, Settlement | Comments closed

SA 11.6

Comments are closed.

Plan of Allocation. All distributions under these Author-Publisher Procedures will be made in accordance with the Plan of Allocation.

Also posted in Article A11, Section A11.6, Settlement | Comments closed

SA.03.3.4

Comments are closed.

(d) If the parties have each timely submitted evidence and have not resolved the matter between them within sixty (60) days from the date such evidence is submitted to the Registry, the Registry will determine whether the evidence submitted establishes that the Book should be classified as In-Print or Out-of-Print under Section 3.2 by reviewing each party’s documentary submissions, as well as any other relevant evidence submitted by the parties, including documents, affidavits, the course of dealing between the parties, or industry standards and practices.

Also posted in Article A3, Section A3.3, Section A3.3(d), Settlement | Comments closed

SAe 1

Comments are closed.

The undersigned holds a Copyright Interest in the following Book:

Title:

Author:

Publication Date:

Publisher:

ISBN:

Other Identifying Information:

The undersigned has a good faith belief that such Book is included in a Google program without the necessary authorization from the undersigned.

The undersigned hereby requests that (check one):

[ ] Google cease using the Book (“Take Down Request”).

[ ] Google transfer the Book to the Google Library Project, subject to the terms and conditions of the Settlement Agreement (“Transfer Request”).


Name:

Title:

Date:

Also posted in Section A.E1, Settlement | Comments closed

SAe 2

Comments are closed.

The undersigned has a good faith belief that he, she or it has the rights in the Book that is the subject of the Notice attached hereto that are necessary to authorize Google to use such Book in the Google Partner Program or [other Google program]. Documentation supporting such good faith belief is attached hereto.

Signed under penalty of perjury.


Name:

Title:

Date:

Also posted in Section A.E2, Settlement | Comments closed

SB1 0

Comments are closed.

This LIBRARY-REGISTRY (FULLY PARTICIPATING) AGREEMENT (with all of the exhibits hereto, the “Library Agreement”) is entered into by and between ______________, a ___________ with its principal offices at _________________ (the “Registry”), on behalf of itself and all Rightsholders, and __________________, with its principal offices at _________________________________(“Library”), is entered into as of _________________ and is effective on the later of such date or the Effective Date of the Settlement Agreement (the “Library Agreement Effective Date”). The Registry and Library are sometimes referred to hereinafter individually as a “Party” and collectively as the “Parties.”

RECITALS

WHEREAS, pursuant to a Settlement Agreement between Google and Plaintiffs dated as of October 28, 2008, the Registry has been established as a clearinghouse for the administration of the rights of Rightsholders under the Settlement Agreement; and

WHEREAS, all of the Rightsholders, through the Settlement embodied in the Settlement Agreement, are deemed to have authorized the Registry to enter into this Library Agreement on their behalf; and

WHEREAS, Library desires to become a Fully Participating Library under the Settlement Agreement.

NOW, THEREFORE, in consideration of the covenants and agreements set forth in this Library Agreement, Registry and Library hereby agree as follows:

Also posted in Attachment B1, Section B1.0, Settlement | Tagged | Comments closed